Sale Agreement - Anglo South Africa Capital (Proprietary) Ltd. and Randgold & Exploration Co. Ltd.
RANDGOLD SALE AGREEMENT
between
ANGLO SOUTH AFRICA CAPITAL (PROPRIETARY) LIMITED
("ANGLO" or "SELLER")
and
RANDGOLD & EXPLORATION COMPANY LIMITED
(REGISTRATION NO. : 1992/005642/06)
("RANDGOLD" or "PURCHASER")
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[WWB LOGO OMITTED]
WEBBER WENTZEL BOWENS
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2.
TABLE OF CONTENTS
PAGE
1. INTERPRETATION......................................................3
2. INTRODUCTION........................................................7
3. CONDITIONS PRECEDENT................................................7
4. SALE OF THE SALE SHARES.............................................9
5. PAYMENT OF AND ADJUSTMENT TO THE PURCHASE PRICE.....................9
6. INTEREST...........................................................14
7. SECURITY ACCOUNT...................................................14
8. CLOSING............................................................15
9. BREACH.............................................................15
10. UNDERTAKINGS.......................................................15
11. WARRANTIES.........................................................16
12. GENERAL............................................................17
13. DOMICILIUM CITANDI ET EXECUTANDI...................................17
14. CONFIDENTIALITY....................................................19
15. APPLICABLE LAW AND DISPUTES........................................19
16. JURISDICTION.......................................................20
17. COSTS..............................................................21
18. EXECUTION IN COUNTERPARTS..........................................21
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3.
WHEREBY IT IS AGREED AS FOLLOWS :-
1. INTERPRETATION
The headings of the clauses in this agreement are for the purpose of
convenience and reference only and shall not be used in the
interpretation of nor modify nor amplify the terms of this agreement
nor any clause hereof. Unless a contrary intention clearly appears:
1.1 words importing:
1.1.1 any one gender include the other two genders;
1.1.2 the singular include the plural and vice versa; and
1.1.3 natural persons include created entities (corporate or
unincorporate) and the state and vice versa;
1.2 the following terms shall have the meanings assigned to them hereunder
and cognate expressions shall have a corresponding meaning, namely:
1.2.1 "ACT" means the Companies Act No. 61 of 1973;
1.2.2 "AGGREGATE HOLDING OF THE CONTROLLING PARTIES" means:
1.2.2.1 in the period from the signature date up to and including
the rights offer date, the aggregate number of ordinary
shares held by all the controlling parties as at the
signature date ("THE INITIAL HOLDING");
1.2.2.2 after the rights offer date, the aggregate of the initial
holding of the controlling parties and all the ordinary
shares acquired by any of the controlling parties in terms
of, or any underwriting commitments made in respect of, the
rights offer;
1.2.3 "BUSINESS DAY" means every day except Saturdays, Sundays and
official public holidays in the Republic of South Africa;
1.2.4 "CHESTNUT" means Chestnut Hill Investments 60 (Proprietary)
Limited (registration number 2004/002172/07);
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4.
1.2.5 "CLOSING DATE" means 3 business days after the fulfilment of all
the conditions precedent;
1.2.6 "THE CODE" means the Securities Regulation Code on Takeovers and
Mergers;
1.2.7 "COMPANY" means Western Areas Limited (registration number
1959/003209/06);
1.2.8 "COMPETITION ACT" means the Competition Act, 1998 (Act 89 of
1998) (as amended from time to time);
1.2.9 "CONCERT PARTY" means any party acting in concert, as defined in
terms of the Code, with any other party;
1.2.10 "CONDITIONS PRECEDENT" means the conditions precedent in
clause 3;
1.2.11 "CONSORTIUM SALE AGREEMENT" means the sale of shares agreement to
be entered into amongst Tawny Eagle Holdings (Pty) Ltd, the
seller, Chestnut and the purchaser, simultaneously with the
entering into by the parties of this sale of shares agreement;
1.2.12 "CONTROLLING PARTIES" means JCI, Randgold or Randgold Resources
Limited and for the purposes of 1.2.2 and 5.6.1.1 shall mean any
of them or any combination of them;
1.2.13 "CSDP" means Central Security Depository Participant registered
in terms of the Custody and Security Administration Act, no 85 of
1992 as amended;
1.2.14 "JCI" means JCI Limited (registration number 1894/000854/06);
1.2.15 "JSE" means the JSE Securities Exchange South Africa;
1.2.16 "MANDATORY OFFER" means a mandatory offer to the minorities in
terms of Rule 8 of the Code;
1.2.17 "MINORITIES" means the shareholders of the company other than the
purchaser, JCI and the seller;
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5.
1.2.18 "OPTION AGREEMENT" means the option agreement between Randgold
and Chestnut, to be entered into simultaneously with the
execution of this agreement;
1.2.19 "OPTION SHARES" means 5 268 800 ordinary shares of R1,00 each in
the company, which are the subject of the option agreement;
1.2.20 "ORDINARY SHARES" means ordinary shares of R1 each in the capital
of the company;
1.2.21 "PARTIES" means each of the purchaser and the seller;
1.2.22 "PLEDGE" means the deed of pledge and cession annexed as Schedule
1 to the consortium sale agreement;
1.2.23 "PRIME" means the published prime bank overdraft rate, on a
nominal annual compounded monthly in arrears basis, as charged
and calculated by The Standard Bank of South Africa Limited to
its corporate customers in respect of overdraft facilities from
time to time as certified by any manager of such bank, whose
appointment and authority it shall not be necessary to prove;
1.2.24 "PURCHASE PRICE" means the price payable for the sale shares,
being R197 580 000,00, subject to adjustment in terms of
clause 5;
1.2.25 "PURCHASE PRICE PER SALE SHARE" means R37,50, subject to
adjustment in terms of clause 5;
1.2.26 "RIGHTS OFFER" means the renounceable rights offer of
approximately 13 172 042 new ordinary shares of R1 each at a
subscription price of approximately 3 050 cents per share
currently being prepared by the company;
1.2.27 "RIGHTS OFFER DATE" means the date on which all shares to be
issued pursuant to the rights offer or the commitments made by
any underwriter to the rights offer have been issued;
1.2.28 "SALE SHARES" means 5 268 800 ordinary shares of R1,00 each in
the company;
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5.
1.2.29 "SECURITY ACCOUNT" means the security account of the purchaser,
described in clause 4.3;
1.2.30 "SELLER'S ATTORNEYS" means Webber Wentzel Bowens;
1.2.31 "SELLER'S ATTORNEYS' TRUST ACCOUNT" means Webber Wentzel Bowens
Trust Account, First National Bank - 60 Main Street, account
number 50510029230, branch code 251705, swift number FIRNZAJJ;
1.2.32 "SIGNATURE DATE" means the date of the last signature of this
agreement;
1.2.33 "SRP" means the Securities Regulation Panel;
1.3 any reference to an enactment is to that enactment as at the date of
signature hereof and as amended or re-enacted from time to time;
1.4 if any provision in a definition is a substantive provision conferring
rights or imposing obligations on any party, notwithstanding that it
is only in the definition clause, effect shall be given to it as if it
were a substantive provision in the body of the agreement;
1.5 when any number of days is prescribed in this agreement, same shall be
reckoned exclusively of the first and inclusively of the last day
unless the last day falls on a Saturday, Sunday or public holiday, in
which case the last day shall be the next succeeding day which is not
a Saturday, Sunday or public holiday;
1.6 where figures are referred to in numerals and in words, if there is
any conflict between the two, the words shall prevail;
1.7 expressions defined in this agreement shall bear the same meanings in
schedules or annexures to this agreement which do not themselves
contain their own definitions;
1.8 the use of any expressions in this agreement covering a process
available under South African law such as a winding-up (without
limitation eiusdem generis) shall, if any of the parties to this
agreement is subject to the law of any other jurisdiction, be
construed as including any equivalent or analogous proceedings under
the law of such defined jurisdiction;
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7.
1.9 where any term is defined within the context of any particular clause
in this agreement, the term so defined, unless it is clear from the
clause in question that the term so defined has limited application to
the relevant clause, shall bear the meaning ascribed to it for all
purposes in terms of this agreement, notwithstanding that that term
has not been defined in this interpretation clause;
1.10 the expiration or termination of this agreement shall not affect such
of the provisions of this agreement as expressly provide that they
will operate after any such expiration or termination or which of
necessity must continue to have effect after such expiration or
termination, notwithstanding that the clauses themselves do not
expressly provide for this. Without limiting the foregoing, the
provisions of clauses 5, 10 and 12 to 18 (both inclusive) shall
survive the expiration or termination of this agreement;
1.11 the rule of construction that the contract shall be interpreted
against the party responsible for the drafting or preparation of the
agreement, shall not apply.
2. INTRODUCTION
2.1 Anglo beneficially owns and wishes to sell the sale shares.
2.2 The purchaser wishes to purchase the sale shares.
2.3 The parties wish to record their agreement in writing.
3. CONDITIONS PRECEDENT
3.1 This entire agreement (save for the provisions of clauses 3, 4.3, 5.7
(the last sentence), 9, 10 and clauses 12 to 18 (both inclusive),
which shall be of immediate force and effect), shall be subject to the
fulfilment of the conditions precedent that, by not later than 15 June
2004:
3.1.1 the consortium sale agreement shall have been entered into by the
parties thereto and the conditions precedent to the consortium
sale agreement (save in respect of the condition relating to the
entering into and fulfilment of the conditions precedent of this
agreement) shall have been fulfilled;
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8.
3.1.2 the purchaser shall have received and furnished Anglo with a copy
of the written unconditional approval, confirmation and consent
of the SRP in respect of the entering into of this agreement
without any obligation on the part of the purchaser and/or JCI to
make a mandatory offer to the minorities, notwithstanding that
JCI and/or its concert party or parties shall have acquired, in
addition to the sale shares, a number not exceeding 4.8 million
shares in the issued share capital of the company, as a result of
JCI being the underwriter in respect of the rights offer, over
and above the shares in the company which the purchaser and JCI
shall receive by following their rights in terms of the rights
offer. It is recorded, for the avoidance of doubt, that JCI and
the purchaser are concert parties for the purposes of this
agreement.
3.2 In addition to the conditions precedent in clause 3.1, this entire
agreement (save for the provisions of clauses 3, 4.3, 5.7 (the last
sentence), 9, 10 and clauses 12 to 18 (both inclusive), which shall be
of immediate force and effect, and save in respect of the provisions
of clauses 5.1, 5.2 and 5.3 which shall become of force and effect on
the fulfilment of the conditions precedent in clause 3.1) shall be
subject to the fulfilment of the condition precedent that, by not
later than 30 September 2004, the purchaser shall have received the
written unconditional approval of the Competition Commission, and if
required in terms of the Competition Act, the recommendation of the
Competition Commission and the unconditional approval of the
Competition Tribunal (as the case may be) in terms of Chapter 3 of the
Competition Act in respect of the acquisition by the purchaser of the
sale shares.
3.3 The purchaser shall use its reasonable commercial endeavours to ensure
that the conditions precedent are fulfilled timeously. Without
limiting the generality of the foregoing, the purchaser shall, at its
cost, comply with all of the obligations in respect of the
notification of a merger in terms of Chapter 3 of the Competition Act
and shall take all reasonable steps and do all things reasonably
required of it to procure fulfilment of the condition precedent in
clause 3.2.
3.4 If any of the conditions precedent is not fulfilled by the dates by
which such condition is required to be fulfilled as specified in
respectively clause 3.1 and 3.2, or such later date as the parties may
agree in writing in respect of the
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9.
relevant condition precedent, the provisions of clauses 3, 4.3, 9, 5.7
(the last sentence), 10 and clauses 12 to 18 (both inclusive)
(together "THE SAVED CLAUSES") shall continue to be of force and
effect but the remainder of this agreement shall never become
effective (and for the purposes of clause 5.3 shall be deemed to have
failed), provided that if the conditions precedent referred to in
clause 3.1 have been fulfilled but the condition precedent referred to
in clause 3.2 has not been fulfilled, clauses 5.1, 5.2 and 5.3 shall
be included in the saved clauses.
4. SALE OF THE SALE SHARES
4.1 The seller sells to the purchaser which purchases the sale shares for
the purchase price payable in the manner referred to in clause 5.
4.2 The sale shares are sold with effect on and as from the closing date,
from which date all risk in and benefits (including beneficial
ownership) attaching to them shall pass to the purchaser.
4.3 The purchaser shall on the signature date furnish the seller with
details of its CSDP and the security account into which it requires
the sale shares to be transferred. The purchaser shall not change such
CSDP without the prior written approval of Anglo, which approval shall
not be unreasonably withheld or delayed.
5. PAYMENT OF AND ADJUSTMENT TO THE PURCHASE PRICE
5.1 The purchaser shall pay the purchase price, together with interest
accrued thereon in full, to the seller's attorney's trust account by
not later than the 10th business day after the conditions precedent in
clause 3.1 have been fulfilled. Transfer of all amounts described in
this clause 5.1 shall be made in immediately available funds, without
set-off or deduction.
5.2 The seller shall instruct the seller's attorney (and hereby
indemnifies and holds the purchaser harmless in respect of all claims,
damage, loss or expense which may be made against the purchaser or
which the purchaser may suffer as a result of the failure of the
seller so to instruct the seller's attorneys and/or the breach by the
seller's attorneys of such instructions or any part of such
instructions) to:
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10.
5.2.1 invest the full amount transferred to the seller's attorneys'
trust account in terms of clause 5.1, in an interest bearing
account in terms of the provisions of section 78(2)(A) of the
Attorneys Act;
5.2.2 to pay the full amount so invested (including, without
limitation, all interest accrued from time to time on all amounts
so invested) ("TRUST FUNDS") to the seller on the closing date
after compliance by the seller with its obligations in terms of
clause 8.1.
5.3 If the condition precedent referred to in 3.2 has not been fulfilled
and this agreement fails as a consequence thereof, the seller's
attorneys shall be instructed by the seller to pay the trust funds to
the purchaser in immediately available funds, without set-off or
deduction to the purchaser by not later than the business day
immediately following the receipt by the seller's attorneys of written
confirmation from the purchaser and the seller of non-fulfilment of
such condition precedent and such failure of this agreement, and the
indemnity given by the seller to the purchaser in terms of clause 5.2
shall apply mutatis mutandis in respect of such instruction.
5.4 Subject to clauses 5.5, 5.6 and 5.7, if during the period from the
signature date to 180 days after the closing date (as defined in the
consortium sale agreement):
5.4.1 the purchaser or any concert party of the purchaser (including
without limitation JCI and Randgold Resources Limited) and/or any
subsidiary or holding company (as defined in the Act) of any of
them, acquires ("ACQUISITION") or sells ("SALE") any ordinary
shares or rights to ordinary shares in the company, or
5.4.2 any offer (including any increase in or amendment of the offer
consideration) ("OFFER") is made to shareholders of the company
generally, or should any scheme ("SCHEME") of arrangement in
terms of the Act be entered into between the company and its
shareholders generally,
at a price per ordinary share in excess ("EXCESS") of the aggregate of
the purchase price per sale share and the aggregate of all interest
which shall have then accrued and been paid, if due and payable on the
purchase price
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11.
per sale share in terms of clauses 5 and 6, the purchase price per
sale share shall, if the seller shall have made an election in terms
of clause 5.7 to apply the provisions of clause 5.4, be deemed to have
been increased by 50% of the amount of such excess and the purchaser
shall pay the seller in cash an amount equal to 50% of such excess
multiplied by the number of sale shares forthwith after the commitment
to make such acquisition or sale, or the scheme is sanctioned by the
court in terms of the Act, or such offer becomes unconditional and
closes or after the excess is determined in accordance with clause
5.4.4, as the case may be, provided that:
5.4.3 if the consideration payable for the acquisition or offer or
scheme or sale:
5.4.3.1 comprises shares only, the price per ordinary share of the
company for the purposes of determining the excess shall be
that share price used or disclosed for the purposes of the
offer or scheme, including any increase in the offer or
scheme consideration, as the case may be;
5.4.3.2 comprises an alternative of cash or a share consideration,
the price per ordinary share of the company for the purposes
of determining the excess shall be the higher of such
alternative (if the alternative consideration is for shares,
the consideration shall be determined mutatis mutandis in
accordance with the provisions of clause 5.4.3.1);
5.4.3.3 comprises partly cash and partly shares, the price per
ordinary share of the company for the purposes of
determining the excess shall be the aggregate of the face
value of the cash portion and value of the shares
(determined mutatis mutandis in accordance with the
provisions of clause 5.4.3.1);
5.4.4 if the methods used for determining the excess are not
appropriate, in the view of the seller or purchaser, then, on the
delivery of a written notice by either the seller or the
purchaser to the other and to KPMG Incorporated accountants
("KPMG") demanding determination of the excess, the excess shall
be determined by KPMG, acting as experts and not as arbitrators
and whose determination shall, in the absence of manifest error,
be final and binding on the parties.
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12.
5.5 If the purchaser accepts any offer (as defined in 5.4.2) after the
closing date, receives the consideration payable in terms of the offer
("OFFER CONSIDERATION") and if the offer consideration comprises:
5.5.1 shares only, the purchaser may elect to pay 50% of the excess by
the transfer to the seller of such number of such shares as shall
be equal in value to 50% of such excess by not later than 3
business days after the purchaser shall have received the offer
consideration. If the purchaser does not make such an election,
50% of the excess will be paid in cash by no later than 3
business days after the purchaser has received the offer
consideration; or
5.5.2 partly shares and partly cash, in which case the seller will
calculate and notify the purchaser of the ratio that the cash
portion of the offer consideration bears to the share portion
("THE RATIO") and the purchaser may then elect to pay 50% of the
excess partly in cash and partly in shares and in the same
proportion as the ratio by not later than 3 business days after
the later of the receipt of the notification from the seller or 3
business days after the purchaser has received the offer
consideration. If the purchaser does not make such an election,
50% of the excess will be paid in cash by no later than 3
business days after the purchaser has received the offer
consideration; and
5.5.3 cash only, 50% of the excess shall be paid in cash by not later
than 3 business days after the purchaser shall have received the
offer consideration; and;
5.5.4 an alternative of cash or a share consideration then 50% of the
excess shall be paid in cash by not later than 3 business days
after the purchaser shall have received the offer consideration.
It is specifically recorded that the seller shall bear any stamp duty
or uncertificated securities tax or brokerage fees in respect of the
transfer to it of such shares as shall constitute 50% of the excess or
a portion of 50% of the excess.
5.6 The provisions of clause 5.4 shall not apply:
5.6.1 to any corporate restructuring in terms whereof:
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13.
5.6.1.1 the controlling parties shall subsequent to such
restructuring hold whether directly or indirectly 75% or
more of the issued share capital of the company and the
remaining interest is beneficially owned and controlled by
HDSA participants; or
5.6.1.2 the whole of the business and/or the assets shall be
acquired by the controlling parties;
5.6.2 any acquisition or sale by any of the controlling parties of
ordinary shares on the JSE Securities Exchange South Africa, as
part of their normal business of trading in the company's shares
or into a level one sponsored American Depository Receipt
Programme in respect of the ordinary shares, provided that the
aggregate holding of the controlling parties at any time shall
not, as a consequence of any such sale or acquisition, increase
or decrease by more than 1% of the issued ordinary share capital
of the company as at the signature date or if the rights offer
occurs, the rights offer date;
5.6.3 any ordinary shares which are the subject of a bona fide scrip
lending arrangement to which any of the controlling parties is a
party, provided that the aggregate holding of the controlling
parties shall not, as a consequence of any such arrangement,
increase or decrease by more than 4% of the issued ordinary share
capital of the company as at the signature date and if the rights
offer occurs, on the rights offer date.
5.7 The purchaser shall forthwith notify the seller in writing of any
proposed acquisition, sale, offer or scheme contemplated in 5.4 and
provide full details thereof. The seller shall within 14 business days
of such notification (or without prejudice to the seller's rights, if
the purchaser fails to so notify the seller, at any time after such
proposed acquisition, sale, offer or scheme comes to the attention of
the seller) inform the purchaser in writing whether it elects that the
provisions of clause 5.4 shall apply or not. If the seller fails to
make such election it shall be deemed to have elected that the
provisions of 5.4 shall not apply. If the seller shall have elected or
be deemed to have elected that the provisions of 5.4 shall not apply
then the seller shall not be precluded from again claiming an
adjustment of the purchase price in terms of clauses 5.4 and this 5.7
(and the purchaser shall be obliged to again comply with the
provisions of this clause 5.7). Should the seller elect that the
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14.
provisions of 5.4 shall apply and if the seller has been paid the
excess in terms of 5.4 the seller shall not be entitled to claim a
further adjustment of the purchase price in terms of 5.4. If there is
a proposed offer, sale, scheme or acquisition whilst any of the
conditions precedent have not been fulfilled, the provisions of this
clause 5.7 shall nevertheless apply and an amount equal to 50% of the
excess, if any, will be paid by the purchaser in cash on the closing
date, if the seller elects that the provisions of clause 5.4 shall
apply.
5.8 In the event that the purchaser shall have sold the option shares, or
any of them ("THE SOLD SHARES") to Chestnut in terms of and/or
pursuant to the option agreement and after Chestnut and Randgold shall
have discharged all their respective obligations due on or before the
closing date under this agreement and the consortium sale agreement to
the seller and the sold shares have been released from the pledge, the
provisions of this clause 5 shall, with effect from the date of the
release of the sold shares from the pledge not apply to the sold
shares, it being recorded, for the avoidance of doubt, that in terms
of the consortium sale agreement, Chestnut shall be obliged to pay to
Anglo an amount in respect of the sold shares determined in accordance
with clause 5 of the consortium sale agreement.
6. INTEREST
Interest on the purchase price shall accrue at prime plus 150 basis
points from 1 April 2004 to the date of the payment of the purchase
price and interest in terms of 5.1, both days inclusive.
7. SECURITY ACCOUNT
The purchaser shall on or before the closing date deliver to the
seller an irrevocable undertaking from the purchaser's CSDP to:
7.1 record, in a form reasonably satisfactory to the seller, on the
closing date, the pledge on the security account in terms of the
Custody and Administration of Securities Act, 1992 (Act 85 of 1992)
(as amended from time to time) and rules of the purchaser's CSDP; and
7.2 give effect to the provisions of the pledge in accordance with its
terms on the instructions of Anglo and, without limitation, to
transfer the pledged shares to
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15.
any purchaser thereof without reference to Randgold, if such transfer
shall be pursuant to the exercise by Anglo of its rights in terms of
the pledge.
8. CLOSING
On the closing date, representatives of the parties shall meet at
10h00 at the offices of Webber Wentzel Bowens, 10 Fricker Road,
Illovo. At that meeting:
8.1 the seller shall deliver to the purchaser a copy of an irrevocable and
unconditional written instruction to the seller's CSDP to effect
transfer of the sale shares into the security account;
8.2 the seller's attorney shall pay to the seller the trust funds; and
8.3 the purchaser shall deliver to the seller the pledge executed by it
together with all such documents, in a form reasonably satisfactory to
the seller, necessary to enable the seller to exercise its rights in
terms of the pledge.
9. BREACH
Should either party ("THE DEFAULTING PARTY") commit a breach of any of
the provisions hereof (other than a failure of the purchaser to pay
the purchase price plus interest in accordance with the provisions of
5.1 for which no notice will be required), then the other party ("THE
AGGRIEVED PARTY") shall, if it wishes to enforce its rights hereunder,
be obliged to give the defaulting party 7 days written notice to
remedy the breach. If no notice is required in respect of any breach,
or if the defaulting party fails to comply with such notice, the
aggrieved party shall be entitled to cancel this agreement against the
defaulting party or to claim immediate payment and/or performance by
the defaulting party of all of the defaulting party's obligations
whether or not the due date for payment and/or performance shall have
arrived, in either event without prejudice to the aggrieved party's
rights to claim damages. The foregoing is without prejudice to such
other rights as the aggrieved party may have at law or in terms of
this agreement.
10. UNDERTAKINGS
10.1 Subject to clause 10.2, the seller hereby irrevocably and
unconditionally undertakes not to follow its rights in terms of the
rights offer.
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16.
10.2 If either this agreement or the consortium sale agreement, or both
this agreement and the consortium sale agreement is/are cancelled or
is/are terminated or is/are not completed (collectively
"CANCELLATION") for any reason whatsoever by their respective closing
dates, the purchaser shall, if the seller so requires by written
notice delivered to the purchaser by not later than 30 business days
after cancellation ("PURCHASE DATE") of either this agreement or the
consortium sale agreement or both this agreement and the consortium
sale agreement and against simultaneous payment in immediately
available funds, without set-off or deduction of the rights offer
price of R30,50 per share together with interest thereon, procure,
forthwith after receipt of such notice, that so many shares in the
company are transferred to the seller as are specified in the notice
("THE RIGHTS OFFER SHARES") but limited to 2 375 913 ordinary shares
in the company. The purchase price for such shares shall be R30,50 per
share and such price shall attract interest at prime for the period
from 5 days following the latest possible date that the seller would
have been required to pay for those shares in terms of the rights
offer to date of payment by the seller to the purchaser in terms of
this clause 10.2, both days inclusive. All costs of transferring those
shares to the seller including any stamp duty or uncertificated
securities, tax or brokerage fees shall be for the account of the
purchaser.
10.3 The purchaser gives the seller the same warranties in respect of the
rights offer shares as are given by the seller to the purchaser in
terms of 11 of this agreement for which purpose "the date of
signature" referred to in 11 shall be replaced by the date of purchase
of the shares in terms of this clause 10.3.
11. WARRANTIES
11.1 The seller warrants that on the date of signature hereof and on the
closing date:
11.1.1 it will be entitled to give free and unencumbered title of the
sale shares to the purchaser, which shall acquire the sale shares
free of any charge, lien and/or encumbrance; and
11.1.2 it will be the beneficial owner of the sale shares.
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17.
11.2 No warranties or representations, express or tacit, which are not set
forth in this agreement shall be binding on the seller and the sale
shares are sold voetstoots.
12. GENERAL
12.1 This agreement constitutes the whole agreement between the parties
relating to the subject matter hereof.
12.2 No amendment or consensual cancellation of this agreement or any
provision or term hereof or of any agreement or other document issued
or executed pursuant to or in terms of this agreement and no
settlement of any disputes arising under this agreement and no
extension of time, waiver or relaxation or suspension of or agreement
not to enforce or to suspend or postpone the enforcement of any of the
provisions or terms of this agreement or of any agreement or other
document issued pursuant to or in terms of this agreement shall be
binding unless recorded in a written document signed by the parties.
Any such extension, waiver, relaxation or suspension which is so given
or made shall be strictly construed as relating strictly to the matter
in respect whereof it was made or given.
12.3 No extension of time, waiver or relaxation of any of the provisions or
terms of this agreement or any agreement or other document issued or
executed pursuant to or in terms of this agreement, shall operate as
an estoppel against any party in respect of its rights under this
agreement, nor shall it operate so as to preclude such party
thereafter from exercising its rights strictly in accordance with this
agreement.
12.4 To the extent permissible by law neither party shall be bound by any
express or implied term, representation, warranty, promise or the like
not recorded herein, whether it induced the contract and/or whether it
was negligent or not.
13. DOMICILIUM CITANDI ET EXECUTANDI
13.1 The parties choose as their domicilium citandi et executandi for all
purposes under this agreement, whether in respect of court process,
notices or other documents or communications of whatsoever nature
(including the exercise of any option), the following addresses :-
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18.
13.1.1 Randgold:
Physical: 3rd Floor, 28 Harrison Street
Johannesburg
2001
Postal: P O Box 11165
Johannesburg
2000
Telefax: (011) 834-2446
13.1.2 Anglo:
Physical: 44 Main Street
Johannesburg
2001
Postal: P O Box 61587
Marshalltown
2107
Telefax: (011) 638-2455
Attention: Company Secretary
13.2 Any notice or communication required or permitted to be given in terms
of this agreement shall be valid and effective only if in writing but
it shall be competent to give notice by telefax.
13.3 Either party may by notice to the other party change the physical
address chosen as its domicilium citandi et executandi to another
physical address where postal delivery occurs in the Republic of South
Africa or its postal address or its telefax number, provided that the
change shall become effective on the 7th business day from the deemed
receipt of the notice by the other party.
13.4 any notice to a party :-
13.4.1 sent by prepaid registered post (by airmail if appropriate) in a
correctly addressed envelope to it at an address chosen as its
domicilium citandi et executandi to which post is delivered shall
be deemed to have been
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19.
received on the 14th business day after posting (unless the
contrary is proved);
13.4.2 delivered by hand to a responsible person during ordinary
business hours at the physical address chosen as its domicilium
citandi et executandi shall be deemed to have been received on
the day of delivery; or
13.4.3 sent by telefax to its chosen telefax number stipulated in clause
13.1, shall be deemed to have been received on the date of
despatch (unless the contrary is proved).
13.5 Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a party shall be an
adequate written notice or communication to it notwithstanding that it
was not sent to or delivered at its chosen domicilium citandi et
executandi.
14. CONFIDENTIALITY
Neither party hereto shall publish to any third party the fact of or
any information concerning the conclusion of this agreement or the
terms hereof without the consent of the other (which consent shall not
be unreasonably withheld or delayed), save for any publication
required by the JSE and/or the SRP or save as required by law,
provided that in each such case the party required to publish will use
its reasonable commercial endeavours to give the other party prior
notice of the contents of the required publication.
15. APPLICABLE LAW AND DISPUTES
15.1 This agreement shall be construed and governed by the laws of South
Africa to the exclusion of any other law.
15.2 Save in respect of those provisions of this agreement which provide
their own remedy, a dispute which arises in regard to :
15.2.1 the interpretation of; or
15.2.2 the carrying into effect of; or
15.2.3 any of the parties' rights or obligations arising from; or
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20.
15.2.4 the termination or proposed termination of or arising from the
termination of; or
15.2.5 the rectification or proposed rectification of,
the agreement or out of or pursuant to this agreement, other than
where an urgent interdict is sought or urgent relief may be obtained
from a court of competent jurisdiction, shall be submitted to and
decided by arbitration.
15.3 The Arbitration proceedings shall take place in the English language
in Johannesburg.
15.4 Save as expressly provided in this agreement to the contrary, the
arbitration shall be subject to the arbitration legislation for the
time being in force in the Republic of South Africa.
15.5 The arbitrator shall be an impartial admitted senior counsel whether
practising or non-practising of not less than 15 years standing
appointed by the parties or, failing agreement between the parties
within 7 days after the arbitration shall have been demanded, at the
request of either of the parties shall be nominated by the chairman
for the time being of the Bar Council of Johannesburg.
15.6 The parties shall keep the evidence and the arbitration proceedings
and any order made by any arbitrator confidential unless otherwise
contemplated herein.
15.7 Either party shall have an automatic right of appeal against any final
decision by an arbitrator to a panel of 3 appeal arbitrators who will
be selected from the ranks of practising senior counsel of not less
than 15 years standing or retired judges agreed to by the parties or
failing agreement, appointed by the chairman for the time being of the
Bar Council of Johannesburg.
16. JURISDICTION
Without in any way limiting or derogating from the provisions of
clause 15 hereof, the parties consent to the non-exclusive
jurisdiction of the High Court of South Africa, Witwatersrand Local
Division, in respect of any disputes or other matters arising from, or
in terms of, or out of the provisions of this agreement.
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21.
17. COSTS
17.1 Each party shall be liable for its own costs and those of its advisers
of and incidental to the drawing and preparation of this agreement.
17.2 Any stamp duty or uncertificated securities tax or brokerage fees on
the transfer of the sale shares or any of them into the name of the
purchaser shall be borne by the purchaser;
17.3 The purchaser shall bear the costs and fees of any regulatory or other
approvals that are required in order to implement this transaction.
18. EXECUTION IN COUNTERPARTS
This agreement shall be capable of being executed in one or more
counterparts, each of which, when read together, shall comprise one
and the same instrument.
SIGNED by the parties on the following dates and at the following places
respectively:
DATE PLACE SIGNATURE
9 June 2004 Johannesburg
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for ANGLO SOUTH AFRICA CAPITAL
(PROPRIETARY) LIMITED
9 June 2004 Johannesburg
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for RANDGOLD & EXPLORATION COMPANY
LIMITED